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GOP: Corporate donation ban unconstitutional

By JOSH GERSTEIN

01/10/2012 03:34 PM EST

The century-old ban on corporate donations to federal political campaigns should be junked as unconstitutional, the Republican National Committee argued in a legal brief filed Tuesday that could lead to new attacks on the GOP as beholden to corporate money.

The GOP brief filed with a federal appeals court contends that the ban which became law back in 1908 violates the First Amendment in light of recent Supreme Court rulings, including the 2010 Citizens United decision which allowed unlimited donations to independent-expenditure groups.

Republican National Committee Chief Counsel John R. Phillippe, Jr., and RNC lawyer Gary Lawkowski contend that the only legitimate rationale for the corporate donation ban now is to prevent an end-run around individual donation limits and that's not an adequate basis to uphold the ban.

"The complete ban both is over-inclusive to this aim and artificially disadvantages political party and candidate committees. It is over-inclusive because it bans all corporate donations without regard to the ability of corporate donors to attribute their donations to individuals. It artificially disadvantages political party and candidate committees by forcing them to rely on aggregating small-dollar donations from individuals while allowing other political actors, such as independent-expenditure-only political action committees, to receive unlimited corporate donations," the GOP lawyers wrote.

The brief (which POLITICO has posted here) does not argue against all donation limits for corporations, but as a practical matter a ruling against the current ban would likely lead to such a result.

Whatever its constitutional merits, the Republican argument could be a political liability for the party as Democrats are likely to portray it as further evidence that the GOP is beholden to corporate America. On the other hand, the near-complete breakdown of campaign finance limits during the current presidential race gives something of a boost to those contending that the few remaining restraints are pointless.

Oddly enough, the RNC is coming to the defense of a pair of Virginia businessmen accused of making illegal corporate contributions to Hillary Clinton's Senate and presidential campaigns, William Danielczyk and Eugene Biagi. The pair are accused of using corporate funds to reimburse about $186,000 in donations made by various individuals. The Republican Party arguments were submitted as an amicus brief supporting the accused businessmen.

U.S. District Judge James Cacheris ruled last May that the corporate donation ban is unconstitutional. However, his initial opinion failed to take account of a 2003 Supreme Court ruling upholding the ban on donations by most nonprofit corporations. Cacheris later issued another opinion reaching the same result, namely that the ban is unconstitutional.

The Justice Department is appealing Cacheris's decision, which undercut the prosecution of Danielczyk and Biagi. The case could become a vehicle for the Supreme Court could to overturn the corporate donation ban.